Democrats are embracing the hardline judicial nominating tactics the GOP adopted under Trump

During the Trump administration, the Republican-controlled Senate Judiciary Committee — led then by Sen. Chuck Grassley of Iowa and later by Sen. Lindsey Graham of South Carolina — dropped the requirement that candidates for the circuit court have the approval of their home state’s senators. before continuing with the confirmation process. (The practice – known as “blue slips” – continued for district court applicants).

This decision helped Trump and Republicans transform the federal justice system. Circuit courts are the final stage before cases reach the Supreme Court and are often the last word in determining how laws and regulations are ultimately interpreted.

“There’s a lot of attention being paid to President Trump’s record 54 circuit court confirmations,” said Chris Kang, co-founder and chief counsel of Demand Justice, which is advocating for Democrats to take a more aggressive approach. of the judicial confirmation process. “It’s because Republicans use their blue slips to create these openings. And then they crushed Democrats 17 times to fill them.”

“If the blue slips were consistent, Trump’s record in the circuit courts would be dramatically different and his impact on the law would be vastly different,” Kang added.

Biden’s first-year effort was largely aimed at filling vacancies in states where both senators were Democrats. Although there were occasional tensions over some candidates, Democrats largely agreed with the president’s vision for the judiciary.

Biden still has plenty of vacancies in blue states to fill, but his efforts are also turning to states where one or both senators are Republican.

A candidate for a Tennessee seat on the 6th U.S. Circuit Court of Appeals who was before the Senate Judiciary Committee on Wednesday marked the first time Democrats have moved forward with an appellate candidate who had no the support of state senators.

Republican sensitivities Marsha Blackburn and Bill Hagerty of Tennessee – where candidate Andre Mathis is from – announced their opposition when Mathis’ nomination was unveiled by the White House in November. On Wednesday, Blackburn reiterated claims that the White House failed to meaningfully engage with Hagerty and her before choosing Mathis over the judge they recommended for the job.

“Because I was not consulted, no one asked me what my objections to Mr. Mathis might be,” Blackburn said, pointing to what she described as a lack of legal experience along with three quotes ten-year-old traffickers that Mathis had failed. to pay.

“It has been made public that he has a criminal record with an extensive list of citations, including multiple failures to appear in court in Tennessee,” Blackburn said during the hearing. “We expect our judges to respect the law, not to despise it. If Mr. Mathis thought he was above the law before, imagine how he will behave if confirmed.”

Judiciary Chairman Dick Durbin, an Illinois Democrat, noted the GOP’s objection and said he was unhappy when Republicans chose to waive blue slips for circuit court nominees. under Trump.

“But my concerns and the concerns of my fellow Democrats were ignored. Republicans chose to abandon Senate courtesy,” Durbin said. “My colleagues opposite, I think, would have a hard time now demanding that Senate Democrats restore this practice.”

A Republican on the committee acknowledged the Democrats’ view that the stage for Wednesday’s disagreement over Mathis was set by how judicial appointments worked under Trump.

“I see [Democrats’] point: “We did it the other way under the Republican administration. To change now would be seen as unfair to this administration,” Louisiana Sen. John Kennedy said. He said Blackburn’s opinion was not appreciated by the White House, but “I honestly can’t say it doesn’t. did not happen under the last administration. Still, he called on the committee to “find a neutral way” for home state senators to have more of a say in appeals court appointments in the future.

A detour from senatorial standards

The practice of blue-slip had been militarized in recent years.

President Barack Obama was unable to fill six seats on appeal due to objections from home-state Republican senators to his nominees. Candidates for several other vacancies were never even named by Obama amid stalled negotiations, and Trump was later able to fill several of those vacancies in his record-breaking confirmation campaign.

In November 2017, Grassley announced he would move forward with Trump appeals court nominees in states where one or both senators failed to return the blue slips of paper that signify their approval.

Grassley said Wednesday that even though he eliminated the blue slip requirement for circuit court nominees, he was still monitoring how much consultation the Trump White House does with senators in the nomination process. The Trump administration, Grassley insisted, “generally canvassed senators for nominees” and engaged in other types of back-and-forth, though some Democrats on the committee said it wasn’t. their experience with the Trump White House.

Republicans have denounced what they say is a lack of effort by the White House to reach an agreement with Republican senators from Tennessee before rejecting their recommendation for the 6th Circuit seat. Sen. Ted Cruz of Texas claimed the Biden White House had “reversed” the Tennessee senators’ contribution and that it was “fundamentally different” from the approach under Trump.

There was a long discussion about the granular details of White House communications with senators about vacancies: when did the communications take place, what was said, and whether that outreach was really less than what the Trump White House had done with many Senate Democrats.

“If we still had the blue slip, we wouldn’t have to argue about whether the consultation was sincere or real or meaningful or not,” Sen. Sheldon Whitehouse said, as the Rhode Island Democrat recounted the warnings that he had spoken out under Trump about Republicans abandoning the practice.

“No blue slip, no appeal,” Whitehouse said Wednesday.

Biden’s judicial nomination campaign reaches red and purple states

The consultation fight comes as Biden enters the next phase of the judicial nomination battle.

He achieved historic success in his effort to fill the bench, tying President Ronald Reagan for the most confirmed justices in the first year of a presidential term.

In addition to the number of confirmed judges, his White House has focused on bringing greater professional diversity to the judiciary. Biden has broken records with the number of former public defenders he has benched.
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At the district court level, where the approval of senators from the home state is still required, the White House has nominated four nominees – three from Ohio and one from Wisconsin – who have the support of Republican senators from these states. The Senate Judiciary Committee will vote Thursday on whether to advance the Ohio nominees, who were originally recommended to the White House after Democratic Sen. Sherrod Brown and Republican Sen. Rob Portman used a bipartisan advisory commission to identify potential candidates. The support these nominees will get from the broader Republican conference will be insight, the courts’ progressive lawyers will say, into whether the blue-slip process for district court nominees will be a point of contention under Biden.

“It will tell if the rest of the Republican caucus is so filibuster and so opposed to anything Joe Biden does that they are prepared to oppose candidates that a senior conservative Republican, Rob Portman, supports,” said Daniel Goldberg, the legal director of the left-leaning legal advocacy group Alliance for Justice.

On Wednesday, the Judiciary Committee finally adopted a more conciliatory tone, even amid harsh words about Mathis’ nomination. Committee members from both parties suggested they would consider charting a new course in the future – possibly after the 2024 election – that would strengthen the role of home state senators in informing circuit court applicants.

But Kang of Demand Justice argued there wouldn’t be enough circuit court vacancies in Biden’s first term for Democrats to match what hardball tactics had achieved for Trump.

“It’s not possible for Republicans to cram in so many confirmations because they’re the first to take advantage,” Kang said. “And then the Democrats only get four years and maybe half a dozen seats on the circuit court.”

This story has been updated with additional details.

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